Lawyers question bill's constitutionality

Legal experts say a provision of the bill passed Tuesday by the County Council setting new licensing and operating standards for adult bookstores may be unconstitutional.

The provision involves the county's authority to deny a license to applicants if they or someone they live with, such as a spouse or a roommate, have been convicted of certain sex-related crimes, including prostitution and rape.

Stuart Comstock-Gay, director of the American Civil Liberties Union in Baltimore, said that provision of the bill is "unconstitutional."

"I don't know what committing those crimes has to do with running a bookstore. Absent a clear nexus, . . . I think that's unconstitutional," he said.

"Trying to limit adult bookstores is prior restraint. It smells like another tactic to limit free speech. Call it what you will, but that's what it smells like," Comstock-Gay added.

Michael Meyerson, associate professor of law at the University of Baltimore Law School, said there is "no logical connection at all" between a roommate or spouse's conviction of certain crimes and the operation of an adult bookstore.

"Unless a spouse or roommate is directly involved in the running of the store, there's no logical connection at all," said Meyerson. "It looks like prior restraint to me, and a protected speech issue. What they're saying is, they won't give you a license for what you've done in the past."

He noted that constitutional law prohibits regulations from being punitive.

"To say, 'Because your roommate engaged in that sort of activity, you can't own a bookstore,' certainly seems to be a penalty to me," Meyerson said.

Heselton said she voted against the bill because lawyers she had talked with pronounced the licensing provision unconstitutional.

Jack T. Feldman, a lawyer representing the owners of the four existing adult bookstores, sat on the 13-member panel that helped draft the legislation.

After the bill was introduced, Feldman objected only to the proposed $500 license fee. The fee was reduced to $200 at his request.

Comstock-Gay said he is not surprised by the lack of protest from adult bookstore owners.

"I'm sure the reason they didn't object strenuously is that they probably thought, 'They could zone us into some other place,'" said Comstock-Gay. "They're going to zone The Block [a red light district in Baltimore] out of existence, and they can do it. So the adult bookstore owners are going to take what they can get and run. They probably thought it was great they were exempted from the zoning restriction."